STRICT LIABILITY IN CYCLING LAWS
TO READY THE ROADS FOR
ENVIRONMENTALLY FRIENDLY
COMMUTING
COLLEEN MAKER *
Abstract: Because automobiles cause harmful effects on the environment, the
United States should encourage bicycling as an alternative means of transportation to automobiles. Many Americans elect not to cycle as a means of transportation out of fear of a collision with an automobile. Such collisions can be devastating physically and financially, and yet, after a bicycle-automobile collision,
cyclists often bear the burden of proving negligence in a suit against the driver,
and are often left without a remedy for their injuries. Other countries, such as
the Netherlands, use a form of strict liability in lawsuits concerning bicycleautomobile collisions, which shifts the cost of such accidents to automobile
drivers. U.S. courts should apply strict liability—as currently used in U.S. tort
law—to collisions between cyclists and automobiles. Shifting the cost of bicycle-automobile accidents to automobile drivers will even out the consequences
between cyclists and drivers, encouraging drivers to drive more safely, creating
safer roads, and encouraging cycling—an environmentally friendly method of
transportation—in place of driving a carbon emitting automobile.
INTRODUCTION
On September 23, 1993, Frederick Waring was riding his bicycle down
a street outside of Austin, Texas. 1 As he entered an intersection through
which he had the right-of-way, while following other vehicles, an automobile coming from the opposite direction turned left and struck him. 2 Mr.
Waring suffered severe head injuries and was in a coma for several days. 3
The driver of the automobile claimed he never saw Mr. Waring or his bicycle before the collision. 4
* Managing Editor, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW, 2014–2015.
1
Waring v. Wommack, 945 S.W.2d 889, 890 (Tex. App. 1997).
2
See id. at 890–91, 894. The driver of a left-turning vehicle has a statutory duty to yield to
vehicles approaching from the opposite direction. See TEX. TRANSP. CODE ANN. § 545.152 (West
1995); Waring, 945 S.W.2d at 894.
3
Waring, 945 S.W.2d at 891. The cyclist had no recollection of the accident. Id.
4
Id. at 894. Although others testified that the cyclist was difficult to see because the sun was
shining brightly at the time of the accident, the defendant testified that he could not remember
whether the sun impacted his view of the cyclist. Id.
473
Environmental Affairs
474
[Vol. 42:473
After the accident, Mr. Waring filed a suit against the driver for negligence to recover damages for his serious personal injuries sustained in the
accident. 5 At trial, “the jury failed to find negligence on the part of either
party.” 6 The Court of Appeals of Texas, presiding in Austin refused to hold
the automobile driver liable for Mr. Waring’s injuries or grant him damages
because it did not find the automobile driver to be negligent.7 The court
held that the burden was on the plaintiff to prove that the automobile driver
“failed to act as a reasonably prudent person under the circumstances existing at the time of the accident.” 8 Further, the court made it clear that automobile drivers do not have an absolute duty to avoid collisions. 9 Mr. Waring, therefore, was left with no remedy to compensate him for his injuries. 10
Amid injustices to cyclists such as this, 11 reliance on automobiles has
increased in the United States, severely impacting the environment.12 Automobiles cause harmful levels of ozone, carbon monoxide, carbon dioxide,
and noise pollution, and contribute to global warming. 13 Cycling, however,
has considerably less negative environmental impacts. 14 In fact, if even ten
percent of commuters in the United States switched from automobiles to
bicycles as a commuting method, emissions of carbon dioxide—a chemical
known to contribute to the global warming crisis—would be reduced by
25.4 million tons per year. 15 And yet, only approximately thirty-two percent
5
Id. at 890.
Id.
7
See id. at 895.
8
Id. at 892.
9
Id. at 891. “Although [the automobile driver] had an enhanced duty not only to maintain a
proper lookout but also to observe the speed and distance of oncoming vehicles to determine if
they constituted an immediate hazard before he began his turn, this duty was not absolute.” Id. at
892.
10
See id. at 891, 895.
11
See, e.g., id.
12
See OFFICE OF MOBILE SOURCES, U.S. ENVTL. PROT. AGENCY, AUTOMOBILES AND OZONE 2
(1993), available at www.epa.gov/otaq/consumer/04-ozone.pdf, archived at http://perma.cc/L5C4HWWS.
13
See id. at 1; Raymond B. Ludwiszewski & Charles H. Haake, Cars, Carbon, and Climate
Change, 102 NW. U. L. REV. 665, 666 (2008); Air Pollution Comes from Many Sources, NAT’ L
GEOGRAPHIC, http://environment.nationalgeographic.com/environment/global-warming/pollutionoverview/ (last visited Feb. 13, 2015), archived at http://perma.cc/3ZA9-QLMF; Noise Pollution,
U.S. ENVTL. PROT. AGENCY, epa.gov/air/noise.html (last updated July 16, 2012), archived at
http://perma.cc/NB6G-8UBF.
14
See Daisy Carrington, Hover Bikes and Laser Lights: The Sci-Fi Future of Cycling, CNN
(Jan. 17, 2014, 11:47 AM), http://www.cnn.com/2014/01/15/tech/innovation/hover-bikes-andlaser-lights/index.html?sr=fb011514cyclingfuture12p, archived at http://perma.cc/8P7Z-KQ9G.
15
Air Pollution Comes from Many Sources, supra note 13; Benefits of Bike Commuting,
MARIN CNTY. BICYCLE COAL., http://www.marinbike.org/Resources/BenefitsOfBikeCommuting.
shtml (last visited Feb. 13, 2015), archived at http://perma.cc/R2DA-CQHG. In 2012, carbon
dioxide emissions in the United States were estimated at 5400 million tons. Overview of Green6
2015]
Strict Liability in Cycling Laws
475
of Americans own bicycles—a proportion significantly lower than many
other countries. 16 Two possible causes of the low rate of bicycle ownership
and use as a means of transportation in the United States are the lack of
safety measures currently afforded to cyclists on the roads and the lack of
judicial remedies in the event of an accident. 17 Further, cyclists are also
known to have a negative reputation in the minds of drivers, who find them
to be nuisances on the road. 18
Under current U.S. law—as illustrated by the plight of Mr. Waring—it
is difficult for cyclists to recover damages after a collision with an automobile, even if the driver is at fault.19 This Note argues that in order to provide
a realistic opportunity for cyclists to recover damages after a collision with
an automobile, the United States should apply the tort theory of strict liability to automobile drivers involved in collisions with cyclists. 20 By imposing
the burden of proving that the cyclist was breaking cycling laws on automobile drivers—instead of forcing the cyclist-plaintiff to prove the driver
was negligent—drivers will be more cautious of cyclists. 21 Cyclists will
also be more careful to follow cycling laws to ensure their own safety and a
remedy in the event of a collision. 22 An increase in cycling safety will then
encourage more cycling, which will directly benefit the environment. 23
Part I of this Note discusses the harmful impact of automobiles on the
environment. 24 Part II discusses the option of bicycling as an alternative to
house Gases, U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/climatechange/ghgemissions/gases/
co2.html (last updated July 2, 2014), archived at http://perma.cc/5EUD-BLW4.
16
See Top 10 Countries with Most Bicycles Per Capita, SPOKEFLY, https://www.spokefly.
com/blog/top-10-countries-bicycles-per-capita/ (last visited Feb. 14, 2015), archived at https://
perma.cc/ATB6-93X6.
17
See M.S., Cycling v Cars: The American Right-of-Way, ECONOMIST (Nov. 11, 2013, 2:56
PM), http://www.economist.com/blogs/democracyinamerica/2013/11/cycling-v-cars, archived at
http://perma.cc/ZU8W-TWQ3. According to Boston, Massachusetts city officials, “[b]icycling
around downtown is confusing and uncomfortable with one-way streets, narrow lanes, and lack of
bicycle accommodations.” Steve Annear, There’s a Public Hearing on the Proposed ‘Connect
Historic Boston’ Bike Loop, BOSTONMAGAZINE.COM (Feb. 26, 2014, 10:22 AM) http://www.
bostonmagazine.com/news/blog/2014/02/26/connect-historic-boston-bike-trail-hearing/, archived
at http://perma.cc/5PCM-CBZN. “[Boston’s] proposed bike trail is supposed to take ‘the stress’
out of traveling downtown for cyclists, whether they be tourists on Hubways or daily riders, according to the city’s website.” Id.
18
See Daniel Duane, Op-Ed., Is It O.K. to Kill Cyclists?, N.Y. TIMES, Nov. 9, 2013, http://www.
nytimes.com/2013/11/10/opinion/sunday/is-it-ok-to-kill-cyclists.html?_r=0, archived at http://perma.
cc/XE8B-QXS7.
19
See M.S., supra note 17.
20
See infra notes 209–317 and accompanying text.
21
See M.S., supra note 17.
22
See id.
23
See Annear, supra note 17; Carrington, supra note 14.
24
See infra notes 29–65 and accompanying text.
Environmental Affairs
476
[Vol. 42:473
driving an automobile, 25 and Part III describes the legal landscape of an automobile driver’s liability, both domestically and internationally. 26 Part IV
explains the current strict liability scheme in the United States,27 and Part V
analogizes the proposed strict liability for automobile drivers to strict products liability and discusses the beneficial potential of shifting the evidentiary burden of proof from cyclists to drivers. 28
I. THE NEED FOR ENVIRONMENTALLY FRIENDLY
COMMUTING ALTERNATIVES
A. The Effect of Cars on the Environment
Despite the development of more environmentally friendly automobile
technology, the excessive use of automobiles in the United States has
caused severe impacts on the environment.29 Automobiles are at least partly
to blame for harmful levels of ozone, carbon monoxide, carbon dioxide, and
noise pollution in the atmosphere. 30 These pollutants are harmful to the environment and carry the potential to adversely affect human health.31
1. Ozone
Ozone, comprised of three oxygen atoms combined (“O3”), is created
by chemical reactions between hydrocarbons, oxides of nitrogen, and sunlight. 32 It is a major byproduct of automobiles, entering the atmosphere
through emissions from cars, trucks, gas stations, and factories. 33 In urban
areas, cars, trucks, buses, construction vehicles, and boats emit most of the
pollutants that create this harmful effect. 34 Despite improved technology
25
See infra notes 66–94 and accompanying text.
See infra notes 95–164 and accompanying text.
27
See infra notes 165–208 and accompanying text.
28
See infra notes 209–317 and accompanying text.
29
OFFICE OF MOBILE SOURCES, AUTOMOBILES AND OZONE, supra note 12, at 2.
30
Id. at 1–2; Ludwiszewski & Haake, supra note 13, at 666; Air Pollution Comes from Many
Sources, supra note 13; Noise Pollution, supra note 13.
31
OFFICE OF MOBILE SOURCES, AUTOMOBILES AND OZONE, supra note 12, at 2; Noise Pollution, supra note 13. Health risks associated with automobile pollution include aggravated asthma, aggravated emphysema and bronchitis, reduced oxygen delivery to organs and tissues, and
noise induced hearing loss. See AIRTrends 1995 Summary, U.S. ENVTL. PROT. AGENCY, http://
www.epa.gov/airtrends/aqtrnd95/co.html (last updated Jan. 5, 2012), archived at http://perma.cc/
K3H3-8XWD; Noise Pollution, supra note 13; Maria A. Fierro et al., What is Ozone?, PIMA
CNTY, ARIZ. DEP’T OF ENVTL. QUALITY, http://www.airinfonow.org/html/ed_ozone.html (last
visited Feb. 13, 2015), archived at http://perma.cc/4F66-LVKT.
32
See Fierro et al., supra note 31. Ozone is different than life-sustaining oxygen, which is
made up of two oxygen atoms combined (“O2”). Id.
33
Id.
34
OFFICE OF MOBILE SOURCES, AUTOMOBILES AND OZONE, supra note 12, at 1.
26
2015]
Strict Liability in Cycling Laws
477
that has lead to more environmentally friendly cars, ozone levels have remained high because people are driving more often.35
Although the ozone layer protects life on earth from the sun’s harmful
ultraviolet rays, ozone formed too close to the earth’s surface can have
harmful effects. 36 Ozone corrodes statues, monuments, natural rock, and
building materials. 37 Additionally, because ozone is a powerful disinfectant
and cleaning agent, it is harmful to humans and animals when it comes into
contact with living tissue by causing swelling and inflammation in the cells
lining the airwaves. 38 Other health risks and potential illnesses due to high
levels of ozone are reduced lung function, aggravated asthma, aggravated
emphysema and bronchitis, among many other illnesses attributed to ozone
exposure. 39
2. Carbon Monoxide
Carbon monoxide, an atmospheric pollutant emitted from automobiles
when carbon fuels are not burned completely, is a colorless, odorless, poisonous gas. 40 Automobiles are responsible for the vast majority of carbon
monoxide emissions. 41 In the United States, over two-thirds of carbon monoxide emissions come from motor vehicles.42 In cities, however, automobiles cause even more environmental damage, accounting for ninety percent
of carbon monoxide emissions. 43
Carbon monoxide harms the environment by polluting the air and
causing smog. 44 High levels of carbon monoxide also pose serious health
risks; when carbon monoxide enters the bloodstream it can reduce oxygen
delivery to organs and tissues. 45 Exposure to high levels of carbon monoxide has also been known to cause “visual impairment, reduced work capacity, reduced manual dexterity, poor learning ability, and difficulty in performing complex tasks.” 46 Carbon monoxide poisoning can even be fatal. 47
35
Id. at 2.
Id. at 1–2; Fierro et al., supra note 31.
37
Fierro et al., supra note 31.
38
Id.
39
Id.
40
Ludwiszewski & Haake, supra note 13, at 666; AIRTrends 1995 Summary, supra note 31.
41
OFFICE OF MOBILE SOURCES, U.S. ENVTL. PROT. AGENCY, AUTOMOBILES AND CARBON
MONOXIDE 1 (1993), available at http://www.epa.gov/otaq/consumer/03-co.pdf, archived at http://
perma.cc/N69D-Z35H; AIRTrends 1995 Summary, supra note 31.
42
OFFICE OF MOBILE SOURCES, AUTOMOBILES AND CARBON MONOXIDE, supra note 41, at
1.
43
Id.
44
Ludwiszewski & Haake, supra note 13, at 666.
45
See AIRTrends 1995 Summary, supra note 31.
46
Id.
36
478
Environmental Affairs
[Vol. 42:473
3. Carbon Dioxide
Another harmful gas emitted from automobiles is carbon dioxide,48
which is the primary greenhouse gas causing global warming. 49 Automobiles
release, on average, twenty-four pounds of carbon dioxide into the atmosphere for every gallon of gas consumed; as a result, they contribute one fifth
of all carbon dioxide emissions in the United States.50 Carbon dioxide levels
in the atmosphere are “higher than they have been for hundreds of thousands
of years.” 51
The National Aeronautics and Space Administration, or NASA, released a study concluding that automobiles are the “largest net contributor
to climate change pollution.” 52 Further, the United States is responsible for
a large amount of pollution that causes global warming. 53 “In fact, the U.S.
transportation sector alone emits more carbon emissions than all but three
other countries’ total emissions.” 54
Global warming—caused by carbon emissions—is predicted to have
devastating consequences on the environment, with some consequences
already beginning. 55 Climate change has already begun melting the polar
ice caps, warming lakes globally, and changing animal migration patterns
and dates of plant activity. 56 Global warming has also begun creating tem47
Carbon Monoxide Questions and Answers, U.S. CONSUMER PROD. SAFETY COMM’N,
https://www.cpsc.gov/en/Safety-Education/Safety-Education-Centers/Carbon-Monoxide-Inform
ation-Center/Carbon-Monoxide-Questions-and-Answers-/ (last visited Feb. 13, 2015), archived at
http://perma.cc/6F8Y-7MCY. For example, leaving a car running in a garage might cause carbon
monoxide poisoning. Id. “The Centers for Disease Control and Prevention estimates that several
thousand people go to hospital emergency rooms every year to be treated for[carbon monoxide]
poisoning.” Id.
48
Air Pollution Comes from Many Sources, supra note 13.
49
Id.
50
See Car Emissions & Global Warming, UNION OF CONCERNED SCIENTISTS, http://www.
ucsusa.org/our-work/clean-vehicles/car-emissions-and-global-warming#.VN4a5lPF9ew (last visited Feb. 13, 2015), archived at http://perma.cc/W3LM-HK6D. Other contributors of carbon dioxide
are airplanes, power plants, and “other human activities that involve the burning of fossil fuels
such as gasoline and natural gas.” Air Pollution Comes from Many Sources, supra note 13.
51
Air Pollution Comes from Many Sources, supra note 13.
52
Zachary Shahan, NASA Says: Automobiles Largest Net Climate Change Culprit, CLEAN
TECHNICA (Feb. 23, 2010), http://cleantechnica.com/2010/02/23/nasa-says-automobiles-largestclimate-change-culprit/, archived at http://perma.cc/S6JG-2B72 (stating that “automobiles are the
largest contributor to climate change, followed by . . . burning of household biofuels (i.e. wood
and animal dung) and . . . raising livestock”).
53
See Car Emissions and Global Warming, supra note 50.
54
Id.
55
Alina Bradford, Effects of Global Warming, LIVESCIENCE.COM (Dec. 17, 2014, 11:15 PM),
http://www.livescience.com/37057-global-warming-effects.html, archived at http://perma.cc/5PF89FEB.
56
Id. (“Today, the overwhelming consensus of researchers is that global warming is real and
is caused by human activity, primarily the burning of fossil fuels that pump carbon dioxide . . . ,
methane[,] and other greenhouse gases into the atmosphere.”).
Strict Liability in Cycling Laws
2015]
479
perature extremes and severe weather patterns with destructive consequences. 57
4. Noise Pollution
Sound becomes noise pollution when “it either interferes with normal
activities such as sleeping, conversation, or disrupts or diminishes one’s
quality of life.” 58 Increased use of automobiles increases noise pollution. 59
Because automobiles are a major source of noise pollution, areas that have a
higher volume of automobiles, such as urban areas, experience higher levels
of noise pollution. 60 Although noise pollution does not receive as much
recognition as water pollution and air pollution, it can have serious health
effects; common health issues directly related to noise pollution include
noise induced hearing loss, sleep disruption, lost productivity, speech interference, high blood pressure, and other stress-related illnesses.61
B. Government Action to Combat Automobile Pollution
Both state and federal governments in the United States have taken the
initiative to combat automobile pollutants. 62 The Environmental Protection
Agency (EPA) has created “common-sense regulatory initiatives,” such as
57
See id.
Noise Pollution, supra note 13.
59
See Ron Chepesiuk, Decibel Hell: The Effects of Living in a Noisy World, 113 ENVTL.
HEALTH PERSP. A34, A34 (2005), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC12
53729/pdf/ehp0113-a00034.pdf, archived at http://perma.cc/C628-MEUK.
60
See id. at A34, A41. Some cities, such as New York City, have made efforts to reduce noise
pollution. Honking Your Horn Will Cost You in NYC, ALLCARRENTACAR.COM (Jan. 21, 2013, 10:05
AM), http://www.allcarrentacar.com/blog/honking-your-horn-will-cost-you-in-nyc/, archived at http://
perma.cc/6URQ-SRYJ (“In fact, New York City is considered to be a pioneer in the area of noise
pollution, becoming one of the first American cities to adopt and enforce a strict noise code back in
1972.”). Since 1972, it has been illegal for drivers to honk their car’s horns within the city. Id. The
no-honking law carries a $350 fine for drivers who honk their horns outside of an emergency situation. Id. Many question the beneficial effects of the law, however, blaming lack of enforcement. Id.;
see N.Y.C., ADMIN. CODE tit. 24, ch. 2, § 24-237 (2014), available at http://public.leginfo.state.ny.us/
lawssrch.cgi?NVLWO:, archived at http://perma.cc/KC8Z-LLBD.
61
Noise Pollution, supra note 13 (“Noise induced hearing loss is the most common and often
discussed health effect, but research has shown that exposure to constant or high levels of noise
can cause countless adverse health effects.”).
62
See What EPA Is Doing About Climate Change, U.S. ENVTL. PROT. AGENCY, http://www.
epa.gov/climatechange/EPAactivities.html (last updated Aug. 1, 2014), archived at http://perma.
cc/T3HV-GUH9. Other countries are attempting to combat pollution from automobiles as well.
See, e.g., Alanna Petroff, Paris Pollution Leads to Car Ban, CNNMONEY (Mar. 18, 2014, 5:43
AM), http://money.cnn.com/2014/03/17/news/paris-pollution-traffic/, archived at http://perma.cc/
B6L4-CE44. In France, the government recently enforced a temporary partial driving ban to cut
back on worsening air pollution in Paris. Id. The ban limits cars that may be on the road each day
by license plate number, and the government has temporarily offered public transportation free of
charge. Id.
58
480
Environmental Affairs
[Vol. 42:473
vehicle greenhouse gas rules to reduce automobile emissions.63 The EPA
also encourages automobile drivers to prevent air pollution by keeping tires
properly inflated, maintaining their cars, getting regular tune-ups, and reducing the number of cars on the road by carpooling, using public transportation, riding a bicycle, and walking. 64 Some states, including New York,
are encouraging proper maintenance by requiring annual automobile inspections and repairs of pollution producing faulty vehicle emission systems. 65
II. CYCLING AS A COMMUTING ALTERNATIVE
The excessive use of automobiles domestically and internationally is
polluting the environment.66 The EPA suggests cycling as an environmentally friendly alternative to driving. 67 Cycling does not produce any of the
negative environmental impacts that cars or other similar modes of transportations produce. 68 In fact, bicycles might soon affirmatively improve the
environment, as at least one company has begun researching bicycle models
that contain air purifiers. 69 Many citizens have also recognized the positive
impacts of cycling, resulting in increased sales of bicycles in the United
States. 70
63
What EPA Is Doing About Climate Change, supra note 62; see Regulations & Standards,
U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/otaq/climate/regulations.htm (last updated Dec.
19, 2014), archived at http://perma.cc/G38S-SL3X.
64
Ways to Reduce Air Pollution, U.S. ENVTL. PROT. AGENCY, http://epa.gov/oaqps001/peg_
caa/reduce.html (last updated Oct. 28, 2014), archived at http://perma.cc/7G24-9XH4.
65
Controlling Air Pollution from Motor Vehicles, N.Y. STATE DEP’T OF ENVTL. CONSERVATION, http://www.dec.ny.gov/chemical/8394.html (last visited Feb. 13, 2015), archived at http://
perma.cc/W844-Z2A7.
66
OFFICE OF MOBILE SOURCES, AUTOMOBILES AND OZONE, supra note 12, at 2.
67
Ways to Reduce Air Pollution, supra note 64. Boston city officials claim that “[i]ncreasing
bicycle trips from transit hubs to popular destinations, workplaces, or homes would help reduce
congestion on transit by providing an alternative to stop transfers on the subway system.” Annear,
supra note 17.
68
See Carrington, supra note 14.
69
Id. Daisy Carrington, a reporter with CNN, notes, “[t]he Bangkok based Lightfog Creative
and Design Company . . . has upped cycling’s already soaring ecological ante with its concept for
an air-purifying bike . . . . At the moment, the idea exists solely as artistic renderings (the company has yet to make a prototype, though one is supposedly in the works).” Id.
70
C. Curt Starling, Bike Injuries: Collision-Related Trauma, http://www.hughston.com/
hha/a_15_3_1.htm (last visited Feb. 13, 2015), archived at http://perma.cc/CE36-TWUL (“Today,
more bicycles are sold annually than automobiles, and more than 17 million adults are estimated
to ride at least twice weekly.”). On the other hand, “[i]n the daytime on a normal working day in
the Netherlands, more than a million journeys are made by bike every hour.” David Hembrow, A
Million Journeys Per Hour by Bike, AVIEWFROMTHECYCLEPATH.COM (Feb. 18, 2011), http://
www.aviewfromthecyclepath.com/search/label/millionperhour, archived at http://perma.cc/7FGH5D2Q.
Strict Liability in Cycling Laws
2015]
481
Americans, however, use their bicycles less than most other countries. Although forty percent of all trips taken in the United States are only
two miles or less, only two percent of those trips are taken by bicycle. 72 By
switching to cycling for these short trips, would-be cyclists could have a
hugely beneficial impact on the environment. 73 In fact, if even ten percent
of commuters currently using automobiles switched to cycling, carbon dioxide emissions would be reduced by 25.4 million tons per year.74 Switching
to cycling in the United States, therefore, has the potential to reduce the severity of the global warming crisis.75
Although cycling provides an environmentally friendly alternative to
automobiles, there is tension between cyclists and drivers that causes cyclists to resent drivers, and visa versa. 76 Drivers tend to find cyclists on the
road to be a nuisance and cyclists tend to feel endangered by overly aggressive, negligent, and reckless drivers. 77 For example, when a cab driver in
New York City grew frustrated with a law-abiding cyclist who the cab driver felt was in his way, the cab driver quickly accelerated into the cyclist,
directly hitting him and a nearby pedestrian. 78 Despite the severity of the
resulting injuries, sources reported that the cab driver was unlikely to be
71
71
Top 10 Countries with Most Bicycles Per Capita, supra note 16. A recent study conducted
by the Department of Transportation in California found a decrease in the use of automobiles and
an increase in walking, cycling, and utilizing public transportation by Californians. Jonathan
Zasloff, Are Californians Finally Getting Out of Our Cars?, LEGALPLANET (Mar. 14, 2014),
http://legal-planet.org/2014/03/14/are-californians-finally-getting-out-of-our-cars/,
archived
at
http://perma.cc/6WNM-SWKA. See generally CAL. DEP’T OF TRANSP., 2010–2012 CALIFORNIA
HOUSEHOLD
TRAVEL
SURVEY
FINAL
REPORT
3–5
(2013),
available
at
http://www.dot.ca.gov/hq/tsip/FinalReport.pdf, archived at http://perma.cc/2R73-K95W (survey
detailing method of travel for Californians). Brian Taylor, UCLA’s Chief Transportation Expert,
is at least one commentator that believes the survey’s results are only due to the poor economy.
Zasloff, supra. If transportation habits of Californian commuters are changing, as the survey predicts, it is crucial that the roads are made safer for cyclists now. See Duane, supra note 18;
Zasloff, supra.
72
AMERICA BIKES & LEAGUE OF AMERICAN BICYCLISTS, NATIONAL HOUSEHOLD TRAVEL
SURVEY (2010), available at http://www.advocacyadvance.org/docs/nhts09.pdf, archived at http://
perma.cc/J92W-F27D.
73
See Benefits of Bike Commuting, supra note 15.
74
Id.; see supra note 15 and accompanying text.
75
See Air Pollution Comes from Many Sources, supra note 13; Benefits of Bike Commuting,
supra note 15.
76
See Duane, supra note 18.
77
See id.
78
Brad Aaron, Cabbie Rammed Cyclist, Severed Woman’s Leg, Won’t Be Charged, BICYCLELAW.COM (Aug. 20, 2013), http://www.bicyclelaw.com/news/n.cfm/cabbie-rammed-cyclistsevered-womans-leg-wont-be-charged, archived at http://perma.cc/WDD6-6HUK. The cyclist was
injured, his bike was damaged, and the pedestrian was severely maimed, having the lower half of one
of her legs severed. Id.
Environmental Affairs
482
[Vol. 42:473
criminally charged or face severe legal consequences. 79 When drivers do
face criminal charges, the cases are usually dismissed due to jurors’ sympathy for the driver. 80 The lack of remedy for injured cyclists contributes to
concerns about the lack of safety of cycling. 81
In the United States, cyclists make up two percent of traffic deaths and
four percent of all emergency room visits are a result of cycling-related injuries. 82 Fatal bicycle collisions are most common when the collision occurs
between a cyclist and an automobile. 83 Bicycle trips, however, account for
only one percent of all trips in the United States. 84 Considering the low percentage of bicycle trips, the percentages of traffic related cyclist deaths and
injuries are disproportionately high. 85 In fact, according to the National
Safety Council, 86 bicycle injuries and fatalities cost the economy over $4
billion per year. 87
Even though bicycling is much more common in many major foreign
cities than in the United States, the large number of cyclists in those cities
does not correlate with a higher number of fatal car-on-cyclist collisions. 88
In fact, in the Netherlands, which has a population of 6,652,800 people and
79
Id. The Taxi and Limousine commission moved for a “punitive suspension” of the cab
driver’s hack license for a mere thirty days. See Brad Aaron, TLC Seeking 30-Day Hack License
Suspension After Midtown Curb-Jump Crash, STREETSBLOG NYC (Aug. 21, 2013), http://www.
streetsblog.org/2013/08/21/tlc-seeking-30-day-hack-license-suspension-after-midtown-curb-jumpcrash/, archived at http://perma.cc/CW5Y-4FEY.
80
Duane, supra note 18. In a New York Times Op-Ed, Daniel Duane stated,
“[J]urors identify with drivers.” Convictions carry life-destroying penalties . . . and
jurors “just think, well, I could make the same mistake. So they don’t convict.”
That’s why police officers and prosecutors don’t bother making arrests. Most cops
spend their lives in cars, too, so that’s where their sympathies lie.
Id.
81
See id.
Starling, supra note 70.
83
Pedestrian and Bicycle Crash Statistics, PEDESTRIAN & BICYCLE INFO. CTR., http://www.
pedbikeinfo.org/data/factsheet_crash.cfm#No1 (last visited Feb. 13, 2015), archived at http://
perma.cc/92JR-YUNF.
84
Id.
85
See id.; Starling, supra note 70.
86
“[T]he National Safety Council is a nonprofit organization with the mission to save lives by
preventing injuries and deaths at work, in homes and communities, and on the road through leadership, research, education[,] and advocacy.” About the National Safety Council, NAT’L SAFETY
COUNCIL, http://www.nsc.org/learn/about/Pages/about-nsc.aspx (last visited Feb. 15, 2015), archived at http://perma.cc/TZT4-R738.
87
Pedestrian and Bicycle Crash Statistics, supra note 84. “Our nation’s economy is significantly
impacted by the total cost of unintentional injuries . . . . Wage and productivity losses are just a few
of the costs of a motor vehicle collision.” Estimating the Costs of Unintentional Injuries, NAT’L
SAFETY COUNCIL, http://www.nsc.org/learn/safety-knowledge/Pages/injury-facts-estimating-cost-ofunintentional-injuries.aspx (last visited Feb. 13, 2015), archived at http://perma.cc/AF2D-6SEM.
88
M.S., supra note 17.
82
2015]
Strict Liability in Cycling Laws
483
approximately 16,500,000 bicycles, 89 Dutch citizens make more trips via
bicycle each day than the United States, Great Britain, and Australia combined. 90 Even with a higher rate, cycling in the Netherlands results in far
fewer fatalities than cycling in the United States.91 In the United States, in
the early 2000s, there were approximately fifty-eight cyclist deaths for every one billion kilometers cycled. 92 In the Netherlands in 2010, on the other
hand, there were only twelve cyclist fatalities for every one billion kilometers cycled. 93 Thus, cyclists in the United States are about five times more
likely to be involved in a fatal crash than their Dutch counterparts. 94
III. CYCLING LAW
A. Current U.S. Cycling Law
Automobile drivers rarely face consequences after a collision with a
cyclist. 95 After hitting a cyclist, drivers commonly use the defense that they
did not see the cyclist, even if the cyclist was riding legally within a marked
bike lane. 96 Even when accidents are the fault of the automobile driver, and
the collision results in the death of the cyclist, the automobile driver is rarely held liable. 97 In most states, bicycles are considered “vehicles” in the
eyes of the law.98 Therefore, fault in collisions between an automobile and a
89
Top 10 Countries with Most Bicycles Per Capita, supra note 16.
Hembrow, supra note 70 (“[Sixteen] million Dutch people make more cycle journeys between them than 300 million Americans, 65 million British[,] and 20 million Australians all added
together, and they do so with greater safety than cyclists in any of those countries.”).
91
M.S., supra note 17.
92
Id. This statistic may have declined since the early 2000s. Id. Because the death rate has
remained fairly constant since the early 2000s, however, it is believed that this statistic is still
fairly accurate. Id. “In 2011, 677 lost their lives in bicycle/motor vehicle collisions, just under two
people every day of the year in the [United States].” Pedestrian and Bicycle Crash Statistics, supra note 84.
93
M.S., supra note 17. The number of cycling deaths in the Netherlands has gone down by a
third since 2000. Id.
94
See id.
95
Duane, supra note 18; see also supra note 80 and accompanying text (describing why automobile drivers rarely face consequences after a collision with a cyclist). Leah Shahum, executive director of the San Francisco Bicycle Coalition stated, “[w]e do not know of a single case of a
cyclist fatality in which the driver was prosecuted, except for D.U.I. or hit-and-run.” Duane, supra
note 18.
96
How to Avoid Car-on-Bike Accidents, BICYCLELAW.COM, http://www.bicyclelaw.com/p.
cfm/bicycle-safety/how-to-avoid-car-on-bike-accidents (last visited Feb. 13, 2015), archived at
http://perma.cc/X36Y-KSQR; see, e.g., Waring v. Wommack, 945 S.W.2d 889, 894 (Tex. App.
1997).
97
See Duane, supra note 18; see also supra note 80 and accompanying text (describing why
automobile drivers rarely face consequences after a collision with a cyclist).
98
Bob Mionske, Bike Accidents: Collisions with Cars at Intersections, NOLO, http://www.
nolo.com/legal-encyclopedia/bike-accidents-collisions-with-cars-29549-2.html (last visited Feb. 13,
2015), archived at http://perma.cc/52KM-JC77.
90
Environmental Affairs
484
[Vol. 42:473
cyclist and between two cars are determined in the same way. 99 Generally,
fault of the collision is determined by whether the driver or cyclist had the
right-of-way, 100 with the burden of proof falling on the moving party, usually the injured cyclist. 101
States are divided between the use of contributory negligence and
comparative negligence as a defense in tort law negligence actions. 102
Comparative negligence, adopted by a majority of states,103 reduces the
damages awarded to a plaintiff by the percentage his negligence contributed
to the injury. 104 Contributory negligence, on the other hand, bars any recovery for a plaintiff in a negligence action if the plaintiff is deemed to also
have been negligent.105 In states with a contributory negligence scheme,
therefore, if a cyclist is found to be even the least bit at fault, she may be
barred from recovery altogether.106 Collisions between any two parties in a
contributory negligence scheme will reach this conclusion, even if not between an automobile and a bicycle. 107
In bicycle-automobile collisions, cyclists are more likely to become injured than automobile drivers because of the sheer mass and power disparity between an automobile and a bicycle. 108 Therefore, cyclist advocates be99
Id.
Id.
101
Bob Mionske, Why We Need Cycling Insurance, BICYCLING (June 22, 2009), http://www.
bicycling.com/blogs/roadrights/why-we-need-cycling-insurance, archived at http://perma.cc/AV5B3EDU (“[P]olice are allowed to make an initial determination about fault. If the police blame the
cyclist, he has an even more difficult burden of proof, because the motorist will use the police
determination as a defense in court.”).
102
See Carol A. Mutter, Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 TENN. L. REV. 199, 199 (1990).
103
See LOUIS R. FRUMER & MELVIN I. FRIEDMAN, 21 PERSONAL INJURY: ACTIONS, DEFENSES, DAMAGES § 101.11 (2015).
104
Mutter, supra note 102, at 199.
105
Id. Four states, Alabama, Maryland, North Carolina, and Virginia, as well as the District of
Columbia, use contributory negligence. FRUMER & FRIEDMAN, supra note 103, § 101.11 n.1.
106
See How to Avoid Car-on-Bike Accidents, supra note 96. (“In fact, in some states, if you
are even [one percent] negligent, you will not be able to recover any damages for your injuries.”).
“In some states, if the cyclist doesn’t come to a complete stop at an intersection, the cyclist may be
barred from any recovery, even if the motorist is mostly responsible for an accident.” Mionske,
Bike Accidents: Collisions with Cars at Intersections, supra note 98.
107
See, e.g., Saindon v. Lucero, 187 F.2d 345, 346 (10th Cir. 1951) (finding deceased plaintiff was contributorily negligent for injuries sustained when struck by an automobile while walking on the highway); see How to Avoid Car-on-Bike Accidents, supra note 96. The court in Saindon v. Lucero held, “[g]enerally it has been said that contributory negligence is the neglect of the
duty imposed upon a person to exercise ordinary care for his own protection and safety which is a
legally contributing cause of injury.” 187 F.2d at 346.
108
See Strict Liability in the Netherlands, NL CYCLING (Feb. 21, 2013), http://bicycledutch.
wordpress.com/2013/02/21/strict-liability-in-the-netherlands/, archived at http://perma.cc/D27NPF56; Stricter Liability—Questions and Answers, CYCLE LAW SCOTLAND, http://www.cyclingaccident-compensation.co.uk/questions-and-answers.aspx (last visited, Feb. 13, 2015), archived at
http://perma.cc/ZW44-XHQQ.
100
2015]
Strict Liability in Cycling Laws
485
lieve that cyclists have more incentive to cycle safely—to protect themselves from physical injuries and death—than drivers have incentive to
avoid cyclists. 109 Many cyclist advocates believe that, in light of this disparity, the current U.S. legal system treats cyclists unjustly. 110 Speaking out
against the perceived injustice, one advocate has lamented that, “[t]his insane lacuna in the justice system reflects extreme systematic prejudice by
drivers against cyclists, and would be easy enough to fix” through changes
in the law. 111
Coupled with claims that drivers are rarely criminally prosecuted after
collisions with cyclists, and the burden on the cyclist in a civil case, there is
very little institutional incentive for drivers to take extra precautionary
measures to avoid striking cyclists with their automobiles. 112 For instance,
in Waring v. Wommack, the Texas Court of Appeals affirmed the dismissal
of a case involving a car collision with a cyclist riding legally on the road,
brought by the cyclist to compensate for injuries resulting from the accident. 113 The cyclist, Frederick Waring, was riding his bicycle through an
intersection, into which he had the right-of-way, when he was struck by a
turning vehicle. 114 The court held that it was Mr. Waring’s burden to prove
that the driver of the automobile was negligent. 115 In his defense, the driver
claimed he did not see the cyclist. 116 The court found that the driver was not
negligent and dismissed the case,117 a result that is not atypical in collisions
between motor vehicles and cyclists.118
Some states have taken the initiative to protect cyclists by creating
penalties aimed at deterring the kind of driving that endangers cyclists.119
109
See M.S., supra note 17.
See Duane, supra note 18.
111
M.S., supra note 17 (“All that America would have to do would be to adopt traffic regulations like the ones in place in the Netherlands . . . .”).
112
See Duane, supra note 18; Mionske, Why We Need Cycling Insurance, supra note 101.
113
945 S.W.2d 889, 894–95 (Tex. App. 1997); see supra notes 1–10 and accompanying text.
114
Waring, 945 S.W.2d at 890–91, 894–95.
115
Id. at 895.
116
Id. at 890–91.
117
See id. at 895.
118
See, e.g., Martinez v. Landry, 399 So.2d 629, 630 (4th Cir. 1981) (holding automobile
driver was not negligent after hitting nine-year-old on a bicycle); Santiago v. Quattrociocchi, 91
A.D.3d 747, 748 (N.Y. App. Div. 2012) (holding infant plaintiff riding a bicycle to be the proximate cause of his own injuries after he was struck by an automobile). “Although the plaintiff suffers from amnesia as a result of the accident, and thus is not held to as high a degree of proof, . . .
he is not relieved of the obligation to provide some proof from which negligence can reasonably
be inferred.” Santiago, 91 A.D.3d at 748; see also Waring, 945 S.W.2d at 895 (holding the cyclist
had the burden to prove the automobile driver was negligent and caused the accident).
119
E.g., Bicycle & Pedestrian Program, OREGON.GOV, http://www.oregon.gov/ODOT/hwy/
bikeped/Pages/laws_regs.aspx (last visited Feb. 13, 2015), archived at http://perma.cc/HQR6R5JC; LACBC and the Proposed California Vulnerable User Law, BIKINGINLA (July 27, 2009),
http://bikinginla.com/tag/holland-bicycle-liability-law/, archived at http://perma.cc/F3LY-KQSA.
110
486
Environmental Affairs
[Vol. 42:473
For example, Oregon passed a bill in 2007 creating “careless driving penalties” for automobile drivers that cause serious physical injury or death to
“vulnerable user[s] of the public way” because of careless driving. 120 Connecticut, Illinois, Nevada, Michigan, Massachusetts, and Rhode Island have
passed similar bills. 121 Not all states, however, are as proactive in creating
safe cycling laws. 122 Texas, for example, vetoed similar proposed legislation
in 2009, though several communities in Texas are passing local vulnerable
user laws to bypass the Governor’s veto. 123
B. Foreign Cycling Law
1. Dutch Law: Strict Liability
In the Netherlands, automobile drivers face strict liability in civil actions when they are involved in a collision with a cyclist.124 The Dutch created the strict liability scheme with Article 185 of the Road Safety Act of
1994 (“Article 185Wvw”). 125 The law was put in place in the 1990s, after
120
Bicycle & Pedestrian Program, supra note 119 (“Under the bill, a ‘vulnerable user’ includes a pedestrian, a highway worker, a person riding an animal, the operator or user of a farm
tractor, a skateboard, roller skates, in-line skates, a scooter, or a bicycle.”). See generally OR. REV.
STAT. § 811.135 (2013) (the state of Oregon's vulnerable user law). The bill “requires a court to
sentence a person convicted of this offense to complete a traffic safety course, perform 100 to 200
hours of community service, pay a fine of up to $12,500, and suspension of driving privileges for
one year.” Bicycle & Pedestrian Program, supra note 119.
121
Joseph Cutrufo, With Governor Malloy’s Signature, Vulnerable User Bill Becomes Law in
Connecticut (May 19, 2014), http://blog.tstc.org/2014/05/19/with-governor-malloys-signaturevulnerable-user-bill-becomes-law-in-connecticut/, archived at http://perma.cc/ZH5B-K7U4; Vulnerable Roadway User Laws Gain Momentum Nationwide as More People Bike and Walk, ALA. BICYCLE & PEDESTRIAN ALLIANCE (Apr. 18, 2011), https://akpedbikealliance.wordpress.com/2011/
04/18/%E2%80%A2-vulnerable-roadway-user-laws-gain-momentum-nationwide-as-more-peoplebike-and-walk/, archived at https://perma.cc/J3VL-2W7Y.
122
See LACBC and the Proposed California Vulnerable User Law, supra note 119.
123
Id.; Vulnerable Roadway User Laws Gain Momentum Nationwide as More People Bike
and Walk, supra note 121; see S.B. 488, 81st Leg., Reg. Sess. (Tex. 2009), available at http://
www.legis.state.tx.us/tlodocs/81R/billtext/html/SB00488I.htm, archived at http://perma.cc/JF8DSQG9. The bill attempted to codify proper driving etiquette regarding cyclists, including making
harassment and intimidation of cyclists illegal. See Tex. S.B. 488. Governor Rick Perry vetoed the
bill, claiming it contradicted current statutes and placed the burden on automobile drivers. ACTION UPDATE—Governor Vetoes Safe Passing, BIKETEXAS (June 19, 2009), http://www.bike
texas.org/en/news/action-alerts/723-action-update-governor-vetoes-safe-passing, archived at http://
perma.cc/6ZEF-HTA9.
124
David Hembrow & Mark Wagenbuur, Campaign for Sustainable Safety, Not Strict Liability, AVIEWFROMTHECYCLEPATH.COM (Jan. 2, 2012), http://www.aviewfromthecyclepath.com/
2012/01/campaign-for-sustainable-safety-not.html, archived at http://perma.cc/AA8A-QE3N.
125
Id.; see Road Traffic Act 1994, Stb. ch. XII, art. 185 (1994), available at www.st-ab.nl/
wetten/0352_Wegenverkeerswet_1994_Wvw_1994.htm, archived at http://perma.cc/R4E7-RJLP.
“There is no equivalent for the phrase ‘strict liability’ in Dutch. It is usually described by the general public [by saying that]. . . ‘as a driver you are liable when you crash into a cyclist’ . . . .” Strict
Liability in the Netherlands, supra note 108.
2015]
Strict Liability in Cycling Laws
487
the Netherlands had already established a “majority cycling culture.” 126 Under Dutch law, pedestrians and cyclists are considered “weaker participants
in traffic.” 127 Automobile drivers are held strictly liable for injuries resulting
from automobile-cyclist collisions. 128 The law places a presumption of fault
on the driver involved in a collision with a cyclist. 129 Cyclists over the age
of fourteen who are acting recklessly might be held partly liable—at least
fifty percent—for the damages because they are presumed to understand
appropriate behavior on the road.130
If the driver of the automobile could have reasonably foreseen the accident to happen, the accident will be deemed the driver’s fault. 131 Even if
the driver can prove none of the blame falls on him, he will still be held
partly liable. 132 If a driver can prove that the collision was a result of “circumstances beyond his control”—showing the accident was out of the driver’s control or foresight—he may only escape some, but not all, liability. 133
Drivers, however, rarely succeed on this defense. 134 For example, if an automobile driver strikes a cyclist on a road that does not contain a bike lane,
thus forcing the cyclist to ride in traffic, the driver will be held liable for at
least fifty percent of the damages. 135 The same result will be reached if the
cyclist is struck as a result of running a red light.136 Dutch judges even consider failing to yield to an automobile, or jumping a red light, either intentionally or accidentally, as foreseeable.137 Therefore, a driver would not be
granted a “circumstances beyond control” defense in these situations. 138
Even if the cyclist is struck after riding the wrong direction on a one-way
street and then speeding out in front of the vehicle at an intersection, the
driver will still be held liable under current Dutch law. 139
126
Hembrow & Wagenbuur, supra note 124.
M.S., supra note 17.
128
See Strict Liability in the Netherlands, supra note 108.
129
M.S., supra note 17.
130
Hembrow & Wagenbuur, supra note 124 (“An adult pedestrian dressed in black and crossing a road without looking can expect to be held . . . liable for damage to a motor vehicle which
hits him.”). The law dictates that if the cyclist is under the age of fourteen, the automobile driver
will always be held at fault for the collision, even if the cyclist would otherwise be at fault. Id.
131
Strict Liability in the Netherlands, supra note 108.
132
See M.S., supra note 17. “If [the cyclist] was indeed at fault, the driver is still liable for
[fifty percent] of the damage. Dutch [lawmakers] considered this to be reasonable, because the
non-motorised road user usually suffers more and more severe damage.” Strict Liability in the
Netherlands, supra note 108.
133
See M.S., supra note 17; Strict Liability in the Netherlands, supra note 108.
134
M.S., supra note 17.
135
See id.
136
See id.
137
Strict Liability in the Netherlands, supra note 108.
138
Id.
139
See M.S., supra note 17.
127
Environmental Affairs
488
[Vol. 42:473
An article in The Economist provides an extreme example to show just
how difficult it is to successfully utilize the “circumstances beyond control”
defense in the Netherlands:
[I]f a tornado is racing through the streets of some Dutch town,
picks [a] truck up, and hurls it into a bicyclist, who is in the middle of running a red light while going the wrong way up a oneway street, no hands . . . the truck driver will probably not have to
pay the cyclist’s damages, unless the cyclist was fourteen or
younger, in which case the truck driver will have to make an extra
effort to prove that there was nothing he could have done to avoid
the accident. 140
The law’s intention and responsibility is to determine “material damage and
financial responsibility.” 141 Whether or not the law actually creates safer
conditions for cyclists is debated in countries advocating for strict liability
in this context. 142 In fact, many citizens of the Netherlands are not aware of
their country’s own law, or that the law is stricter than other countries,
which is the primary argument critics of the strict liability scheme use to
show the Dutch law cannot be credited with the low rate of accidents in the
Netherlands. 143
2. Dutch Law: Infrastructure
In the Netherlands, the infrastructural design of the roads is different
from roads in the United States, or anywhere else in the world for that matter. 144 Dutch roads separate automobiles from bicycles to provide “a traffic
environment that is safer for all road users.” 145 The road design in the Netherlands is referred to as “Sustainable Safety.” 146 Sustainable Safety began in
the 1990s at the same time as the enactment of Article 185 Wvw’s strict liability scheme. 147 The roads are engineered to account for human error, mak140
Id.
Hembrow & Wagenbuur, supra note 124 (“[The law] could also help determine who pays
for repair or replacement of an adult’s bicycle which has been run over by a truck. However, this
law is not concerned with allocating blame, or with imprisoning bad drivers.”).
142
See Campaign for Presumed Liability: Road Share, CYCLE LAW SCOTLAND, http://
www.cycling-accident-compensation.co.uk/strict-liability.aspx (last visited Feb. 13, 2015), archived
at http://perma.cc/2QTK-P5HM; Strict Liability in the Netherlands, supra note 108.
143
Hembrow & Wagenbuur, supra note 124.
144
Id.
145
Strict Liability in the Netherlands, supra note 108; Sustainable Safety, NL CYCLING (Jan. 2,
2012), http://bicycledutch.wordpress.com/2012/01/02/sustainable-safety/, archived at http://perma.
cc/9RHP-8GET.
146
Strict Liability in the Netherlands, supra note 108.
147
Hembrow & Wagenbuur, supra note 124.
141
2015]
Strict Liability in Cycling Laws
489
ing accidents less common than in other countries. 148 For example, pedestrians, cars, and cyclists each have their own set of traffic lights at each intersection. 149 At a particular moment, only one group of travelers, moving in
one direction will have a green light.150 That way, there are no cars coming
in the opposite direction, or turning across a lane while travelers are coming
in the opposite direction.151 Additionally, cars, pedestrians, and cyclists are
not competing with one other to cross the intersection first.152
Some Dutch citizens attribute their cycling safety culture to the infrastructure the Netherlands has created, rather than to any additional strictness
of their laws. 153 Critics of the Dutch strict liability scheme claim, “the importance of this [strict liability] law is often wildly overstated across the
English speaking world.” 154 They claim that Sustainable Safety (i.e., the
improved infrastructure) and not the implementation of a strict liability
scheme, must be given the credit for driver awareness and cycling safety in
the Netherlands. 155
3. Scotland’s Efforts to Pass Strict Liability Laws for Cyclist-Automobile
Collisions
Although many other countries utilize the Dutch strict liability model
for cycling, not all countries, including the United States, follow this model. 156 The United Kingdom is one of a minority of European countries that
148
Id. Some U.S. cities are attempting to implement cyclist-friendly infrastructure as well. See,
e.g., CHI. DEP’T OF TRANSP., COMPLETE STREETS CHICAGO 5 (2013), available at
http://www.cityofchicago.org/content/dam/city/depts/cdot/Complete%20Streets/CompleteStreetsGui
delines.pdf, archived at http://perma.cc/59PP-GKY5; Annear, supra note 17. Boston city officials
have created a “Connect Historic Boston” proposal that would create a “family friendly” bicycle
loop around the city’s downtown area, “which will connect cyclists to historic sites all around the
city with relative ease.” Annear, supra note 17. The project “will feature the installation of buffered, protected bike lanes, special paving to separate the trail from the roadways and pedestrian
walkways, and two-lane tracks for cyclists throughout.” Id. Chicago is also planning to implement
bicycle and pedestrian-friendly infrastructure. See CHI. DEP’T OF TRANSP., supra note 148, at 5.
149
Hembrow & Wagenbuur, supra note 124.
150
See id.
151
Id.
152
See id.
153
See Strict Liability in the Netherlands, supra note 108 (“It’s like with disease: it’s good to
know there is a cure for an illness, but you’d rather not get sick in the first place. In this analogy
‘strict liability’ is the antidote, whereas ‘sustainable safety’ is the vaccine.”).
154
Hembrow & Wagenbuur, supra note 124.
155
See id.
156
Campaign for Presumed Liability: Road Share, supra note 142. “Stricter liability is the
norm in most countries in the world. In Europe, this includes major nations like Belgium, Denmark, France, Germany, the Netherlands[,] and Spain . . . . Stricter liability can also be found in
Asia, in countries like India, Bangladesh, Vietnam, and China.” Strict Liability—Questions and
Answers, supra note 108.
Environmental Affairs
490
[Vol. 42:473
do not use strict liability to protect cyclists and other “vulnerable road users,” along with Cyprus, Malta, Romania, and Ireland.157
In Scotland, the Campaign for Stricter Liability (the “Campaign”) was
created to push for strict liability to be implemented to protect Scottish cyclists. 158 Contrary to the belief of strict liability critics in the Netherlands, 159
the Campaign believes implementing strict liability, in conjunction with its
advertising through the media and cyclist organizations, will increase cycling safety. 160 The Campaign has made some progress in Scotland. 161 Currently, it is running an online petition and utilizing internet forums to spread
knowledge. 162 The goal of the Campaign is to introduce a strict liability bill
to the Scottish Parliament.163 Ultimately, the hope is that the bill will implement a “no-fault liability” structure in Scottish cycling law. 164
IV. STRICT LIABILITY IN THE UNITED STATES
The legal concept of strict liability—analogous to the Dutch law used
for automobile-cyclist collisions—exists in U.S. common law for torts. 165
Strict liability makes a defendant liable for harm without looking at the defendant’s intent or negligence. 166 Unlike in traditional negligence tort cases,
in strict liability tort cases, defendants may be held liable for harm that was
not caused intentionally, recklessly or negligently, as long as defendant’s
actions were the factual cause of the harm. 167 Strict liability should not be
confused with absolute liability because defenses and limitations might still
be applicable in certain strict liability situations.168 Unlike absolute liability—where there would be no burden of proof and no possible defense—
strict liability shifts the burden of proof from the aggrieved moving party to
157
Campaign for Presumed Liability: Road Share, supra note 142.
Id.
159
See supra notes 153–155 and accompanying text.
160
Campaign for Presumed Liability: Road Share, supra note 142; Hembrow, Perfect Driving
Will Never Happen (Campaign for Sustainable Safety, Not Strict Liability—part 2), AVIEWFROM
THECYCLEPATH.COM (July 19, 2013), www.aviewfromthecyclepath.com/2013/07/perfect-drivingwill-never-happen.html, archived at http://perma.cc/436F-6HP2.
161
See Campaign for Presumed Liability: Road Share, supra note 142.
162
See id.
163
Id.
164
See id. No-fault liability is “where a person is held responsible not for his failure to display
the diligence of a reasonable man, but because he is in control of danger to other people’s lives,
health, or property.” Id.
165
See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM ch. 4,
Scope Note (2010); Hembrow & Wagenbuur, supra note 124.
166
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM ch. 4,
Scope Note.
167
Id.
168
Id. § 20.
158
2015]
Strict Liability in Cycling Laws
491
the alleged tortfeasor defendant. 169 U.S. tort law applies such strict liability
in limited instances—most notably in cases involving abnormally dangerous activities and in products liability. 170
A. Abnormally Dangerous Activity
A strict liability standard was first applied in the United States to activities considered “abnormally dangerous.” 171 If the activity creates a high
risk of foreseeable physical harm, even if all parties exercise reasonable
care and the activity is “not a matter of common usage,” it is considered
abnormally dangerous.172 Further, even if the defendant took all necessary
precautions while performing the abnormally dangerous activity, he may be
held strictly liable for any resulting injury. 173
This concept of strict liability originated in the United Kingdom in the
1800s, in the case of Rylands v. Fletcher. 174 In Rylands, the defendant built
a reservoir on his land and during the process of building it, the base began
to leak, which in turn damaged a nearby property. 175 The House of Lords
held the defendant at fault for the damage. 176 In particular, Lord Chancellor
Cairns held that because the defendant was using his land for “a non-natural
use,” he should be held strictly liable for the damage caused by his activi-
169
See John F. Vargo, The Emperor’s New Clothes: The American Law Institute Adorns a
“New Cloth” for Section 402A Products Liability Design Defects—A Survey of the States Reveals
a Different Weave, 26 U. MEM. L. REV. 493, 508 (1996) (“Imposing strict liability relieves plaintiff of the burden of proving fault . . . . Indeed, the most significant difference between negligence
and strict liability [might] turn out to be where the burden of proof lies with respect to such issues.”).
170
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM ch. 4,
Scope Note, § 24. Strict liability is also used in cases of respondeat superior. Id. at ch. 4, Scope
Note. Respondeat superior is actually a combination of strict liability and negligence. Id. If an
employee is found negligent, the employer can be held strictly liable for the negligent actions of
his employees. Id.
171
Id. § 20; see, e.g., City of Neodesha v. BP Corp. N. Am. Inc., 287 P.3d 214, 220 (Kan.
2012) (class action suit alleging groundwater and subsurface soil contamination caused by former
oil refinery considered abnormally dangerous activity and subject to strict liability).
172
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 20; see,
e.g., City of Neodesha, 287 P.3d at 220.
173
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 20; see,
e.g., Klein v. Pyrodyne Corp., 810 P.2d 917, 918–19, 921, 925–26 (Wash. 1991) (finding general
contractor for aerial fireworks at public fireworks display strictly liable for injuries sustained by
spectators even though he took all mandatory precautions).
174
Rylands v. Fletcher, L.R. 3 H.L. 330 (1868); RESTATEMENT (THIRD) OF TORTS: LIAB. FOR
PHYSICAL & EMOTIONAL HARM § 20.
175
Rylands, L.R. 3 H.L. at 331–32.
176
Id. at 337.
Environmental Affairs
492
[Vol. 42:473
ty. 177 Today, U.S. courts often cite to Rylands when discussing abnormally
dangerous activities. 178
The Restatement (Second) of Torts lists six factors to consider when
determining whether an activity is abnormally dangerous. 179 The factors
are: (1) the degree of risk that harm will occur; (2) the likelihood of great
harm; (3) the potential to eliminate the risk by using reasonable care; (4) the
common nature of the activity; (5) the appropriateness of the activity to occur in a given location; and (6) the value of the activity to the community. 180
The activity must be found to be abnormally dangerous according to an examination of these factors for strict liability to apply to an alleged tort. 181
B. Products Liability
Products liability makes a product’s manufacturer strictly liable for injury to a consumer during use of the product, even if the manufacturer took
all possible care in production and sale. 182 Instead of proving the manufacturer was negligent in its construction of the product, the injured party must
prove that the product in question was defective and unreasonably dangerous. 183 Next, the injured party must prove that the defect existed at the time
it “left the hands of the defendant.” 184 Finally, the plaintiff must prove that
“the defect was the direct and proximate cause of the plaintiff’s injuries or
loss.” 185 If the plaintiff is able to meet its burden of proof, the manufacturer
will be held strictly liable for the plaintiff’s injuries or loss, regardless of
whether or not it was negligent. 186
Originally, strict products liability was used to protect consumers
against food unsafe for human consumption.187 Today, however, strict products liability is applied more broadly. 188 The justification behind the use of
177
Id. at 339.
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 20; see,
e.g., Sprankle v. Bower Ammonia & Chem. Co., 824 F.2d 409, 414 (5th Cir. 1987); City of Neodesha, 287 P.3d at 225.
179
RESTATEMENT (SECOND) OF TORTS § 520 (1965).
180
Id.
181
City of Neodesha, 287 P.3d at 217 (class action suit alleging groundwater and subsurface
soil contamination caused by former oil refinery considered abnormally dangerous activity and
subject to strict liability).
182
RESTATEMENT (SECOND) OF TORTS § 402A.
183
Temple v. Wean United, Inc. 364 N.E.2d 267, 270 (Ohio 1977); RESTATEMENT (SECOND)
OF TORTS § 402A.
184
Temple, 364 N.E.2d at 270.
185
Id.
186
See id.
187
RESTATEMENT (SECOND) OF TORTS § 402A.
188
Id. “Beginning in 1958 . . . a number of recent decisions . . . have extended the rule of
strict liability to cover the sale of any product which, if it should prove to be defective, may be
expected to cause physical harm to the consumer or his property.” Id. “[Strict products liability]
178
2015]
Strict Liability in Cycling Laws
493
strict liability for products is that “the seller, by marketing his product for
use and consumption, has undertaken and assumed a special responsibility
toward any member of the consuming public who may be injured by it.” 189
Additionally, public policy considerations require that consumers be protected—particularly against accidental injuries caused by manufacturers—
by putting the costs on those best suited to bear them. 190 Strict liability thus
gives consumers maximum protection, allowing them to trust that manufacturer’s products are made with all the necessary precautions.191
The case of Escola v. Coca Cola Bottling Co. of Fresno is considered
the landmark products liability case in the United States. 192 In 1944, in Escola, the Supreme Court of California held Coca Cola liable for injuries
sustained by a waitress when a bottle of soda exploded on her. 193 The bottle,
which shattered in the waitress’s hand, “inflicted a deep five-inch cut, severing blood vessels, nerves[,] and muscles of the thumb and palm of the
hand.” 194 The plaintiff was unable to prove exactly what caused the bottle to
explode. 195 Instead, the plaintiff relied solely on the doctrine of res ipsa loquitur. 196 Coca Cola, the defendant, rebutted her claims by countering that
if the plaintiff could not produce evidence proving specific negligent acts
that caused the bottle to explode, the case must be dismissed. 197
The court in Escola based its holding on a criminal statute.198 “The
statute imposes criminal liability not only if the food is adulterated, but if its
container, which may be a bottle, has any deleterious substance, or renders
the product injurious to health.” 199 The criminal statute attached liability
even if the plaintiff was unable to prove the manufacturer was at fault.200
The court in Escola—basing its decision on the public policy-based stat-
applies also to products which, if they are defective, may be expected to and do cause only ‘physical harm’ in the form of damage to user’s land or chattels, as in the case of animal food or a herbicide.” Id.
189
Id.
190
Id.
191
See id.
192
See 150 P.2d 436 (Cal. 1944); SHAPO ON THE LAW OF PRODUCTS LIABILITY, CCH LAW
OF PRODUCTS LIABILITY pt. 1, ch.7, § 7.01 (2014), available at 2013 WL 5624029 (C.C.H.).
193
Escola, 150 P.2d at 440.
194
Id. at 438.
195
Id. at 439.
196
Id. at 438. Res ipsa loquitor is a Latin phrase meaning “the thing speaks for itself.”
BLACK’S LAW DICTIONARY 712 (10th ed. 2014). “The doctrine providing that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence that establishes
a prima facie case.” Id.
197
Escola, 150 P.2d at 438.
198
Id. at 441.
199
Id.
200
Id.
Environmental Affairs
494
[Vol. 42:473
ute—extended strict liability to civil cases. 201 The policy thrust behind the
decision was that strict liability is applied to products liability because the
manufacturer is in a better position to detect defects and to provide a sense
of safety to consumers. 202
A manufacturer may be able to avoid liability, however, if it can prove
that the consumer was using the product in an unforeseeable way. 203 For
example, in 2013, in Korban v. Boostpower U.S.A., the owner of a boat held
a fuel rail to stop a gasoline leak while another passenger continued to drive
the boat. 204 While the owner held the fuel rail, fuel began to spew, covering
him. 205 Ultimately, the owner suffered fatal injuries when a rapid fireball
overtook him. 206 The plaintiff, suing on behalf of the deceased owner,
claimed that the accident would not have occurred if a security bar had been
installed on the boat. 207 The Tenth Circuit Court of Appeals held, however,
that because the fuel rail was being misused in an unforeseeable way, the
manufacturer was free from liability. 208
V. APPLYING STRICT LIABILITY TO CURRENT U.S. BICYCLING LAW
Applying strict liability to automobile collisions with bicyclists will lead
to safer roads for American cyclists, 209 which will in turn lead to increased
rates of cycling, 210 thereby reducing environmentally harmful auto emissions. 211 The U.S. legal system should recognize that although a bicycle is
considered a vehicle, cyclists are more physically vulnerable and suffer
more severe damages than the automobile driver in a bicycle-automobile
collision. 212 The law should shift the burden of proof from the cyclist to the
automobile driver through implementation of strict liability on automobile
drivers who strike cyclists. 213 Because the strict liability scheme is already
201
Id.
RESTATEMENT (SECOND) OF TORTS § 402A (1965).
203
Id.
204
533 F.App’x 820, 822 (10th Cir. 2013). “The fuel rail is a part of the fuel injection system
. . . . It’s essentially a metal pipe that channels fuel to the fuel injectors which will in turn spray the
fuel into the engine’s air stream . . . The fuel rail must be strong enough to contain fuel under
pressure without breaking . . . .” John Brennan, What Is a Fuel Rail?, EHOW,
http://www.ehow.com/about_6672624_fuel-rail_.html (last visited Feb. 13, 2015), archived at
http://perma.cc/P8GB-UAFD.
205
Korban, 533 F.App’x at 821–22.
206
Id.
207
Id.
208
Id. at 823.
209
See M.S., supra note 17.
210
See Annear, supra note 17.
211
See Ways to Reduce Air Pollution, supra note 64.
212
See Strict Liability in the Netherlands, supra note 108.
213
See id.
202
2015]
Strict Liability in Cycling Laws
495
in use in other areas of U.S. tort law to shift the presumption of liability to
the party better suited to avoid the injury, courts are already logistically
well suited and doctrinally prepared to apply the standard to cycling accidents. 214 It would also be inexpensive in comparison to alternative measures
to improve cyclist safety, such as infrastructure reform. 215
Although a proposed strict liability scheme in the United States would
mimic Article 185 of the Road Safety Act of 1994 (“Article 185Wvw”), it
would function somewhat differently. 216 The change in the law could have
profound impacts on both drivers and cyclists in the United States. 217 Although some Dutch citizens might criticize the strategy of implementing
strict liability to create safer roads,218 cycling advocates believe the change
will have a positive impact on road safety in the United States,219 which will
in turn benefit the environment. 220
A. The Need for Change
The United States needs to encourage cycling to protect the environment from the harmful effects of automobiles. 221 If commuters switch from
driving automobiles to riding bicycles, the environment will benefit from
reduction in noise pollution, as well as harmful ozone, carbon monoxide,
and carbon dioxide, which will slow global warming. 222 In order to effectively present cycling as a commuting alternative, cyclists will first need to
214
See, e.g., RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM
§ 20 (2010); RESTATEMENT (SECOND) OF TORTS § 402A (1965); Strict Liability in the Netherlands, supra note 108.
215
See Annear, supra note 17. Preliminary costs to create bicycle infrastructure in certain
areas of Boston’s downtown alone are estimated at $23.2 million. Id.
216
See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 20;
Strict Liability in the Netherlands, supra note 108. See generally Road Traffic Act 1994, Stb. ch.
XII, art. 185, available at www.st-ab.nl/wetten/0352_Wegenverkeerswet_1994_Wvw_1994.htm
(codification of the Dutch automobile-cyclist collision strict liability scheme), archived at http://
perma.cc/R4E7-RJLP.
217
See M.S., supra note 17 (“This regulatory regime places an extra burden on drivers . . . .
Cyclists in the Netherlands learn to stay inside the country’s ubiquitous bike lanes, not to run red
lights, and to signal before turning, and they obey those rules more scrupulously than Americans
do [without the strict liability regime].”).
218
See, e.g., Hembrow & Wagenbuur, supra note 124; Strict Liability in the Netherlands,
supra note 108.
219
See Hembrow, Perfect Driving Will Never Happen, supra note 160.
220
See Benefits of Bike Commuting, supra note 15.
221
See OFFICE OF MOBILE SOURCES, AUTOMOBILES AND OZONE, supra note 12, at 2; Carrington, supra note 14.
222
See OFFICE OF MOBILE SOURCES, AUTOMOBILES AND OZONE, supra note 12, at 1–2;
OFFICE OF MOBILE SOURCES, AUTOMOBILES AND CARBON MONOXIDE, supra note 41, at 1; Air
Pollution Comes from Many Sources, supra note 13; Benefits of Bike Commuting, supra note 15;
Noise Pollution, supra note 13.
Environmental Affairs
496
[Vol. 42:473
feel safe on the roads. 223 To accomplish this, strict liability should be applied to automobile drivers when they are involved in a collision with a bicyclist. 224
Although infrastructure reform would be a sure way to improve cyclist
safety, such reform is likely many years away, and it will be expensive. 225
The United States should implement strict liability now to increase cycling
safety and thereby protect the environment from the harmful effects of automobiles. 226 Strict liability already exists for other harms in the U.S. tort
law system, and it would be relatively easy to implement quickly and at
little cost.227 Down the road, after strict liability has been successfully implemented, infrastructure might be adjusted to supplement the safety offered
to cyclists. 228
B. Strict Liability Already Works in the United States
Strict liability is already used in the United States in tort law for products liability and abnormally dangerous activities. 229 In the United States,
circumstances that warrant strict liability create a presumption of liability
on the actor. 230 Similarly, applying strict liability to automobile drivers
would create a presumption of liability on the driver in the event of a collision with a cyclist. 231 Instead of forcing injured cyclists to prove the driver’s
negligence, recklessness, or even intent, the burden would shift to the defendant driver to provide a defense against strict liability. 232
223
See Annear, supra note 17; Duane, supra note 18.
See M.S., supra note 17.
225
See Annear, supra note 17; Hembrow & Wagenbuur, supra note 124; see also supra note
153 and accompanying text (comparing strict liability to a cure for an illness and sustainable safety to a vaccine). Boston’s proposed infrastructure plan is funded through a federal Transportation
Investment Generating Economic Recovery, or TIGER, grant. Annear, supra note 17. Preliminary
costs of the project are estimated at $23.2 million. Id. Due to the mass expense and logistical complications of altering the current infrastructure of the roads, in comparison with the ease of reforming application of strict liability, infrastructure reform seems untenable as an immediate solution.
See id.
226
See Benefits of Bike Commuting, supra note 15; M.S., supra note 17.
227
See, e.g., RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM
§ 20 (2010); RESTATEMENT (SECOND) OF TORTS § 402A (1965); see Annear, supra note 17. Because the structure of strict liability already exists in tort law, it would be administratively less
complicated and less expensive to implement than creating a new legislative scheme for cyclists or
infrastructure reform. See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL
HARM § 20; RESTATEMENT (SECOND) OF TORTS § 402A; Annear, supra note 17.
228
See Annear, supra note 17; Hembrow & Wagenbuur, supra note 124.
229
See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 20;
RESTATEMENT (SECOND) OF TORTS § 402A; see supra notes 165–208 and accompanying text.
230
See Vargo, supra note 169, at 508.
231
See M.S., supra note 17; Stricter Liability—Questions and Answers, supra note 108.
232
See M.S., supra note 17; Stricter Liability—Questions and Answers, supra note 108.
224
2015]
Strict Liability in Cycling Laws
497
The use of strict products liability is most analogous to the structure
and logic behind strict liability in automobile-bicycle collisions. 233 In those
cases, the manufacturer is liable for damages caused by its products. 234 The
manufacturer is held liable because it is in a better position to avoid the
harm. 235 Similarly, drivers are in a better position to avoid accidents with
cyclists; they have more power and protection on the road. 236 Additionally,
strict liability is implemented in products liability cases in order to protect
the consumer and instill consumers with a sense of safety. 237 Analogously,
strict liability laws for drivers will provide extra security to cyclists, making
the roads safer for the environmentally friendly commuting method. 238
The caveat to strict products liability is that if the manufacturer can
prove that the consumer was using the product in an unforeseeable way, it
will not be held liable for the damages. 239 This defense should be available
in a strict liability scheme used for automobile collisions with cyclists. 240
Generally, automobile drivers will be held strictly liable for collisions with
cyclists. 241 The burden will be on the automobile driver to prove that the
cyclist was not abiding by cycling laws and therefore was misusing the road
in an unforeseeable way. 242 If the automobile driver can prove that the cyclist was not abiding by the cycling laws, the driver may not be held liable
for damages. 243 This, however, will not be a quick and easy defense, and it
233
See infra notes 234–245 and accompanying text.
See RESTATEMENT (SECOND) OF TORTS § 402A.
235
Id.
236
M.S., supra note 17 (“The burden can be summed up as follows: before you turn, you have
to check carefully in the mirror to see whether there’s a cyclist there.”); Strict Liability in the
Netherlands, supra note 108 (“Because due to the differences between motorised and nonmotorised road users, it is very likely that the latter will suffer more and more severe damage
and/or injuries when both are involved in a traffic accident.”). “The law also considers the fact that
drivers are obliged to be insured for such damage and non-motorised road users are not.” Strict
Liability in the Netherlands, supra note 108.
237
See RESTATEMENT (SECOND) OF TORTS § 402A.
238
See id.; M.S., supra note 17.
239
Randy R. Koenders, Products Liability: Product Misuse Defense, 65 A.L.R. 4th 263, § 3
(1988). The Model Uniform Product Liability Act, as well as most states, recognizes the product
misuse defense. Id. “However, the highest courts in Kansas and Texas have completely rejected
the misuse defense and supplanted it with comparative fault and contributory negligence principles.” Id.
240
See id.
241
See RESTATEMENT (SECOND) OF TORTS § 402A. Strict liability is shifting the burden of
proof from the cyclist to the driver, not solely implementing a contributory negligence standard.
Stricter Liability—Questions and Answers, supra note 108.
242
See Koenders, supra note 239, § 3; supra note 153 and accompanying text. In the United
States, Alabama, Arizona, Colorado, Connecticut, Idaho, Illinois, Michigan, New Hampshire,
New Mexico, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Utah, Washington,
and West Virginia put the burden of proving misuse on the defendant in strict products liability
cases. Koenders, supra note 239, § 3.
243
See Koenders, supra note 239, § 3.
234
498
Environmental Affairs
[Vol. 42:473
will not always be successful. 244 The burden will be on the automobile driver to prove the cyclist was misusing the road, and doing so will often be a
challenge. 245
Strict products liability has had a positive impact on consumers in the
United States. 246 When the concept was first extended from inherently dangerous activities to products liability, however, the public policy grounds for
the rule were not enough to persuade judges. 247 For almost two decades after the ruling in Escola, 248 strict liability was often applied in products liability cases under the “disguise” of implied warranty. 249 William Prosser’s
article, The Assault Upon the Citadel, was a contributing factor that initiated
the redrafting of the Restatement (Second) of Torts, to include strict products liability. 250
Similarly, courts have the power to expand the application of strict liability to collisions between automobiles and cyclists. 251 The progression of
courts applying strict liability more broadly to products should be mimicked
in the context of automobile-bicycle collisions. 252 Although the expansion
of strict liability to products was gradual, the same public policy considerations make strict liability for automobile-bicycle collisions beneficial to cyclists. 253 The expansion shows that if courts begin to expand strict liability
further, the change is likely to eventually gain wide acceptance in the future,
as demonstrated by strict products liability, which is now unquestioned in
the U.S. legal system. 254
244
See id. The defense will not be as difficult to obtain as the “circumstances beyond control”
defense in the Netherlands. See Strict Liability in the Netherlands, supra note 108; supra notes
124–143 and accompanying text.
245
See Koenders, supra note 239, § 3.
246
RESTATEMENT (SECOND) OF TORTS § 402A; see, e.g., Escola v. Coca Cola Bottling Co. of
Fresno, 150 P.2d 436, 441 (Cal. 1944) (Traynor, J., concurring).
247
SHAPO ON THE LAW OF PRODUCTS LIABILITY, supra note 192, § 7.01. In Escola v. Coca
Cola Bottling Co. of Fresno, Judge Traynor wrote a separate concurring opinion advocating for
“absolute liability.” 150 P.2d at 441; SHAPO ON THE LAW OF PRODUCTS LIABILITY, supra note
192, § 7.01. “However, Judge Traynor was unable to persuade his colleagues on the California
Supreme Court, or any other U.S. courts, that the time had come for such boldness.” SHAPO ON
THE LAW OF PRODUCTS LIABILITY, supra note 192, § 7.01.
248
150 P.2d at 441.
249
SHAPO ON THE LAW OF PRODUCTS LIABILITY, supra note 192, § 7.01.
250
Id. (“Prosser argued that a form of strict liability had been applied for decades, not only to
food, an area in which a non-fault form of liability had traditionally been employed, but to other
products as well.”). In 1963, in Greenman v. Yuba Power Products, “Judge Traynor brought his
Escola idea of 1944 to full bloom.” 377 P.2d 897 (Cal. 1963)
251
See Greenman, 377 P.2d at 897.
252
See id.
253
See id.
254
See id.
2015]
Strict Liability in Cycling Laws
499
C. Proposed Differences from Dutch Strict Liability
The proposed strict liability scheme in the United States would not exactly mimic Article 185Wvw in the Netherlands. 255 Because bicycles are
treated as vehicles in the United States, and not as “weaker participants,” as
in the Netherlands, the application of strict liability should, and must, differ
slightly. 256 Even if the cyclist’s actions leading up to the accident were foreseeable, the automobile would not be deemed at fault if the cyclist is not
abiding by cycling laws. 257 For example, if a cyclist causes a collision with
an automobile by running a red light, the driver of the automobile would not
be liable, or at least not fully liable for the collision. 258 A cyclist running a
red light in the Netherlands, in contrast, would not be so unforeseeable as to
satisfy the “circumstances beyond control” defense. 259 In the United States,
however, the cyclist—considered a vehicle in the eyes of the law—would
be breaking the law and therefore would be held at least partly to blame for
the accident. 260
D. Impact on U.S. Drivers and Bicyclists
Strict liability would have positive implications for both drivers and
cyclists. 261 Applying strict liability to automobile drivers involved in collisions with cyclists would equalize the consequences of collisions between
automobile drivers and cyclists. 262 Drivers, however, might incorrectly assume the law creates an injustice to them in the event of a collision.263 For
example, the Dutch tourism and car owners’ organization claims that some
drivers think strict liability gives cyclists “a blank check to ignore the
255
Compare RESTATEMENT (SECOND) OF TORTS § 402A (1965) (“If the injury results from
abnormal handling . . . or from abnormal preparation or use . . . or from abnormal consumption . . .
the seller is not liable.”), with Strict Liability in the Netherlands, supra note 108 (“[Strict liability]
is usually described by the general public [by saying that]. . . ‘as a driver you are liable when you
crash into a cyclist’ . . . unless the driver can prove the incident was caused by circumstances
beyond his/her control. That will be hard, because the driver must then prove he/she drove flawless[ly].”).
256
See Mionske, Bike Accidents: Collisions with Cars at Intersections, supra note 98; M.S.,
supra note 17. Because most states treat drivers and cyclists as vehicles, they are held to the same
standard of negligence. See Mionske, Bike Accidents: Collisions with Cars at Intersections, supra
note 98. The law cannot utilize two different standards for the same type of road user. See id.;
M.S., supra note 17.
257
See Koenders, supra note 239, § 3.
258
See id.; M.S., supra note 17.
259
M.S., supra note 17.
260
See Koenders, supra note 239, § 3; Mionske, Bike Accidents: Collisions with Cars at Intersections, supra note 98.
261
See Duane, supra note 18; M.S., supra note 17.
262
See M.S., supra note 17.
263
See id.
Environmental Affairs
500
[Vol. 42:473
rules.” 264 Cyclists, however, are more concerned with their health and safety
than with liability and compensation after an accident. 265 “[A] cyclist is not
going to deliberately ride through a red light thinking: ‘I won’t have to pay
the damages anyway.’ He is more likely to be influenced by the risk that he
will land in the hospital.” 266 Because a cyclist’s life is on the line, as opposed to the driver’s wallet, the law evens out the consequences by fixing
an existing injustice, not creating a new one.267 Thus, the scheme will result
in fewer accidents involving cyclists.268
Changing the liability model in the United States for collisions between automobile drivers and cyclists might have dramatic effects on both
groups. 269 If drivers are made aware that they will be held strictly liable for
collisions with cyclists, they will be more cautious of cyclists and take extra
precautions to avoid collisions. 270 Drivers will no longer be able to use the
excuse, “I didn’t see the cyclist.” 271 Cyclists, on the other hand, will likely
become increasingly aware of the cycling laws in their area.272 Because cyclist safety will only be increased if cyclists abide by the cycling laws and
damages can only be collected in such cases, cyclists will be more likely to
abide by cycling laws. 273 This, in turn, has the potential to reduce the number of automobile-bicycle collisions and cyclist fatalities, by making all parties on the road more cautious, and encouraging all to follow the rules of the
road more closely. 274 And in so doing, it might ease the tension between
cyclists and automobile drivers that exists on U.S. roads. 275
By using a model similar to the Netherlands, and switching the burden
of safety from cyclists to automobile drivers, the United States can increase
safety for cyclists. 276 For example, Waring v. Wommack—where the Texas
Court of Appeals dismissed the case because the driver was not found to be
negligent after striking a cyclist riding legally through an intersection when
he had the right-of-way—would have had a different result in the Dutch
264
Id.
Id.
266
Id.
267
See id.
268
Id.
269
See id.
270
See id.
271
See id.; Mionske, How to Avoid Car-on-Bike Accidents, supra note 96. “In fact, that is the
number one excuse drivers make when they collide with a cyclist—‘I didn’t see him.’” Id.
272
See M.S., supra note 17.
273
See id.
274
See id.
275
See Duane, supra note 18. If cyclists and automobile drivers are both encouraged to abide
by the laws and courtesies of the road, there may be less tension between them. See id.
276
See id.; M.S., supra note 17.
265
2015]
Strict Liability in Cycling Laws
501
strict liability scheme. 277 The driver would have been held liable for the injuries to the cyclist even though the driver was not found to be negligent.278
If the driver knew he might be liable, he might have been more cautious of
the possibility of the cyclist on the road in the first instance. 279
E. Responding to Skeptics
Many commentators in the Netherlands are skeptical about the effects
of implementing strict liability in other countries. 280 They claim that strict
liability will not prevent collisions 281 because a collision between a automobile driver and a cyclist is rarely intentional, and therefore cannot be deterred by implementation of strict liability. 282 In response, cyclist advocates
claim that there is “no such thing as an unavoidable accident.”283
Although not all accidents will be avoided, strict liability should cause
many drivers to be more cautious of cyclists and their rights on the road. 284
Additionally, the United States currently uses the strict liability model for
several other areas of law. 285 For example, a manufacturer does not intentionally or carelessly sell a defective product.286 U.S. courts and legislatures, however, have found that it is vital to offer the protection of strict
products liability to consumers, to ensure manufacturers are being as careful
as possible and to shift fault to the manufacturer in the event an accident
occurs. 287 The same line of reasoning applies to the use of strict liability for
automobile drivers: they will be more cautious of cyclists on the road because they will be liable for damages when an accident occurs. 288
Some commentators in the Netherlands admit that road safety would
be improved if drivers were more cautious of cyclists and could therefore
avoid accidents.289 Many, however, refuse to link strict liability with safer
277
See 945 S.W.2d 889, 890–91, 894–95 (Tex. App. 1997) (the automobile driver claimed he
did not see the cyclist); M.S., supra note 17; supra notes 113–117 and accompanying text.
278
See Waring, 945 S.W.2d at 895; supra note 17 and accompanying text.
279
See Waring, 945 S.W.2d at 895; Strict Liability in the Netherlands, supra note 108.
280
See, e.g., Hembrow & Wagenbuur, supra note 124; Hembrow, Perfect Driving Will Never
Happen, supra note 160; Strict Liability in the Netherlands, supra note 108.
281
Hembrow, Perfect Driving Will Never Happen, supra note 160; Strict Liability in the
Netherlands, supra note 108.
282
Hembrow, Perfect Driving Will Never Happen, supra note 160; Strict Liability in the
Netherlands, supra note 108.
283
Hembrow, Perfect Driving Will Never Happen, supra note 160.
284
See M.S., supra note 17.
285
See, e.g., RESTATEMENT (SECOND) OF TORTS §§ 402A, 520 (1965).
286
See id. § 402A. Strict liability might still apply even if the seller exercised all due care in
preparation and handling of the product. Id.
287
Id.
288
See id.
289
Hembrow, Perfect Driving Will Never Happen, supra note 160.
Environmental Affairs
502
[Vol. 42:473
driving in the country, instead attributing it to the innovative infrastructural
enhancements put in place in the country. 290 Nonetheless, the strict liability
scheme was adopted in the Netherlands at the same time as the infrastructure change. 291 Therefore, it is difficult to determine whether all the credit
for cyclist safety should be allocated to the infrastructure, as some claim, or
if instead, whether it is attributable to some combination of both factors. 292
Skeptics of the notion that strict liability results in safer roads for cyclists claim that a connection cannot be made between behavior and punishment. 293 They claim that other factors are involved in making safer
roads, and liability alone will not deter unsafe driving behavior.294 The U.S.
legal system, however, is based, at least partly on the idea that the law can
deter behavior by holding citizens accountable. 295 The theory of deterrence
is that punishment, or the threat of punishment, will pressure citizens to
abide by the laws. 296 In tort law specifically, deterrence is based on the economic theory that assumes citizens will take cost-justified precautions and
therefore will avoid potentially costly tort liability. 297
In the Netherlands, the law’s only effect is to determine financial responsibility after a collision already happened, by dictating which party’s
insurance company pays for the collision’s resulting damage. 298 Even still,
automobile drivers who know they will be held financially responsible for a
collision might act more cautiously on the roads.299 Although insurance
companies might pay the liabilities, accidents might also cause an increase
in insurance rates. 300 Even the automobile driver who does not care about
the safety of the cyclist will surely care about the impact on his wallet. 301
290
E.g., id.
Now it’s true that road safety would be improved if drivers were perfect, and this is
sometimes described as a “low hanging fruit” to cycling campaigners who believe
that the danger that they face daily on the roads would be reduced if only they could
convince all drivers to behave better all the time.
Id.; Strict Liability in the Netherlands, supra note 108; see supra notes 144–155 and accompanying text.
291
Hembrow & Wagenbuur, supra note 124.
292
See id.
293
Id.; Strict Liability in the Netherlands, supra note 108.
294
Hembrow & Wagenbuur, supra note 124.
295
Ernest J. Weinrib, Deterrence and Corrective Justice, 50 UCLA L. REV. 621, 621 (2002).
Deterrence and corrective justice are the pillars of tort law. See id. at 627 “[T]ort law should be
understood through a mixed theory that affirms both corrective justice and deterrence.” Id.
296
See id. at 627.
297
See id.
298
Hembrow & Wagenbuur, supra note 124.
299
See Weinrib, supra note 295, at 627; Hembrow & Wagenbuur, supra note 124; M.S., supra note 17.
300
Accident Info: How Car Accidents Can Affect Your Rate, ESURANCE.COM, http://www.
esurance.com/claims-info/accident-info/accidents-and-increased-rates (last visited Feb. 14, 2015),
2015]
Strict Liability in Cycling Laws
503
Some commentators in the Netherlands further claim that strict liability cannot be the reason for safe cycling in the Netherlands because residents of the Netherlands do not know their law is different from the laws in
other countries.302 Sources in the Netherlands claim that there are low rates
of cycling in other countries because cyclists are worried about being involved in collisions generally, and not who will pay for damages afterwards. 303 Although those in the Netherlands cite the infrastructural improvements, and not the strict liability scheme, as the source of cycling
safety in the country, 304 the two initiatives were implemented almost simultaneously. 305 It is unclear whether either strict liability or infrastructure is
the sole cause of the increase in bicycle safety, but it seems unlikely that
bicycle safety in the Netherlands can be solely attributed to either factor. 306
Skeptics claim that the law will not increase the number of cyclist
commuters. 307 Such critics claim that people will cycle more when they believe the roads are safe and they will not be involved in a collision—not
when they will be compensated for a collision. 308 Strict liability attempts to
even out the consequences of an accident between an automobile driver and
archived at http://perma.cc/5947-MF75. Accidents do not automatically cause insurance rates to
increase. Id. It may take three years for premiums to return to the pre-accident rate, however, if they
are increased as the result of an accident. Id. Implementing a strict liability scheme has the potential
to increase insurance rates to prices that many cannot feasibly afford. See id. This may result in a
decrease in the volume of cars on the road, which furthers the goal of increasing the use of environmentally friendly commuting methods such as cycling. See How Biking Instead of Driving Can Help
You Save On Auto Insurance, 4AUTOINSURANCEQUOTE.COM, http://www.4autoinsurancequote.
com/uncategorized/how-biking-instead-of-driving-can-help-you-save-on-auto-insurance/ (last visited
Feb. 14, 2015), archived at http://perma.cc/R6KB-YSDQ.
301
See Weinrib, supra note 295, at 627.
302
Hembrow & Wagenbuur, supra note 124. Similarly, in products liability, consumers might
not feel safer merely because the manufacturer will be liable for injuries sustained from the product,
but strict products liability still helps to keep consumers safe. See RESTATEMENT (SECOND) OF
TORTS § 402A (1965). In fact, most Americans are not familiar with all laws and regulations generally. Frank Bruni, Op-Ed, America the Clueless, N.Y. TIMES, May 11, 2013, http://www.nytimes.
com/2013/05/12/opinion/sunday/bruni-america-the-clueless.html?pagewanted=all&_r=0, archived at
http://perma.cc/8XQK-JQ3J.
303
Hembrow & Wagenbuur, supra note 124.
The lack of cycling in other countries is not due merely to worries about a lack of
compensation for remaining family after a family member has been crushed by a
truck. Rather, people are scared to cycle due to worry about being crushed by a truck
in the first place. This change of law does not in itself encourage a higher rate of cycling. That was never its purpose.
Id.; Strict Liability in the Netherlands, supra note 108.
304
E.g., Hembrow & Wagenbuur, supra note 124.
305
Id.
306
See id.
307
Id.; Strict Liability in the Netherlands, supra note 108.
308
Strict Liability in the Netherlands, supra note 108 (i.e., they do not believe strict liability
will make drivers more vigilant and thus inherently safer on the roads).
Environmental Affairs
504
[Vol. 42:473
a cyclist. 309 Even if the immediate effect is not to increase cycling, in time,
drivers will be more cautious out of necessity, which will lead to safer roads
and more cycling commuters.310 Countries with low cycling rates, such as
the United States, can benefit from these laws until proper infrastructure
and cycling culture is developed.311
F. Strict Liability Will Benefit the Environment
By creating safer roads, cycling levels in the United States will increase. 312 If commuters switch to cycling from automobiles as their primary
means of short distance commuting, the environment will enjoy a huge benefit. 313 Levels of ozone, carbon monoxide, carbon dioxide, and noise pollution will all be reduced significantly, providing both health and environmental benefits. 314 If the creation of safer roads can convince even one out of
ten automobile drivers to switch to cycling, the effects of global warming
will be reduced. 315 Because the U.S. transportation sector alone contributes
more harmful carbon emissions than most countries’ total emissions, the
United States has a responsibility to encourage environmentally friendly
commuting methods and to reduce emissions in any way possible. 316 By
creating safer roads, through a strict liability scheme for automobile-bicycle
collisions, and encouraging safe cycling as a commuting alternative, the
United States could affect such a reduction, which would significantly improve our environment and protect it for future generations. 317
CONCLUSION
The excessive reliance on automobiles in the United States causes serious environmental impacts. Although bicycling is an environmentally
friendly commuting alternative, many Americans choose not to cycle because the roads are not safe for cycling under the current laws. Sharing the
309
See id.
See M.S., supra note 17; Strict Liability in the Netherlands, supra note 108.
311
See Annear, supra note 17; Duane, supra note 18; M.S., supra note 17; supra note 153 and
accompanying text.
312
See Strict Liability in the Netherlands, supra note 108; supra notes 261–311 and accompanying text.
313
See Carrington, supra note 14.
314
See Ludwiszewski & Haake, supra note 13, at 666; OFFICE OF MOBILE SOURCES, AUTOMOBILES AND OZONE, supra note 12, at 1–2; Air Pollution Comes from Many Sources, supra note
13, at 1; Benefits of Bike Commuting, supra note 15; Noise Pollution, supra note 13.
315
See Air Pollution Comes from Many Sources, supra note 13; Benefits of Bike Commuting,
supra note 15.
316
See Car Emissions & Global Warming, supra note 53.
317
See Carrington, supra note 14; M.S., supra note 17; Strict Liability in the Netherlands,
supra note 108.
310
2015]
Strict Liability in Cycling Laws
505
roads creates tension between drivers and cyclists, making cyclists feel, and
in some instances become, unsafe. Even after a collision, cyclists face an
uphill battle in court in actions against drivers for damages (even when the
automobile driver is clearly at fault for the accident).
From an international perspective, Americans cycle less than citizens
of many other countries, and when they do cycle, it is at a higher risk than
those abroad. In the Netherlands, for example, bicycling rates are much
higher than in the United States, and yet, casualties as a result of cycling are
significantly lower. The cycling safety in the Netherlands may be attributed
to its “sustainable safety” infrastructure, and the strict liability scheme placing the burden on automobile drivers in the event of a collision.
Strict liability, analogous to the law governing automobile-bicycle collisions in the Netherlands and the current U.S. strict liability application to
products liability, would create safer roads for cyclists. A strict liability
scheme could be implemented quickly in the United States because strict
liability is already applied in other tort law situations. Implementation by
courts would also be inexpensive and less politically challenging than infrastructure reform. By implementing strict liability, the United States could
provide protection to cyclists, therefore making the roads safer and encouraging environmentally friendly commuting.